Hynes v. Mayor and Council of Oradell

Mr. Justice Rehnquist,

dissenting.

I agree with virtually everything said in Parts 1 and 2 of the Court’s opinion, which indicates that the Oradell *631ordinance in question can survive a wide range of “as applied” challenges based on the First and Fourteenth Amendments. I do not agree with Part 3 of the Court’s opinion, which concludes that the ordinance is unconstitutionally vague as presently drafted.

The Court recognizes that none of our cases have ever suggested that a regulation requiring only identification of canvassers or solicitors would violate any constitutional limitation. As noted by the Court in Part 2 of its opinion, at least two decisions have taken care to point out that such ordinances would unquestionably be valid. See Cantwell v. Connecticut, 310 U. S. 296, 306 (1940); Martin v. Struthers, 319 U. S. 141, 148 (1943).

I also agree with the Court’s observation that:

“A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment.” Ante, at 617.

The Court goes on to point out that this element of unbridled official discretion was present in all those cases in which the Court has invalidated laws which might otherwise be thought to bear a superficial resemblance to the ordinance at issue here. There is clearly no such vice in the Oradell ordinance. As the Court recognizes, Ordinance No. 598A “imposes no permit requirement.” Ante, at 612. Instead, it comes to us with the binding, NAACP v. Button, 371 U. S. 415, 432 (1963), construction of the New Jersey Supreme Court that under Oradell’s law “no discretion reposes in any municipal official to deny the privilege of calling door to door.” Ante, at 616, quoting from 66 N. J. 376, 380, 331 A. 2d 277, 279 (1975).

*632After demonstrating the undoubted constitutional validity of Oradell’s ordinance in all other respects, the Court proceeds in Part 3 of its opinion to determine that the ordinance is unconstitutional because of its asserted vagueness. But even allowing for the stricter standard which the Court says is appropriate in dealing with laws regulating speech, ante, at 620, I fail to see any vagueness in this ordinance which would not inhere in any ordinance or statute which has never been applied.

The first alleged infirmity cited by the Court is that the ordinance’s coverage is unclear. It suggests that this occurs because it is difficult to ascertain precisely what “causes” are covered by the law or what groups come within a general definition found therein. Assuming for the moment that these references in the ordinance may be “vague,” at least ás that term is colloquially employed, there is no one in this case who may raise any claim that this “vagueness” is of constitutional dimension. From their verified complaint filed in Bergen County Superior Court, it is clear that appellants asserted interests only in the ordinance’s effect upon political canvassing, either as it would deter their own ability to seek political support or in their desire to receive such entreaties in their homes. App. F. None of the appellants assert any connection with “charitable” or any other “causes,” nor do they profess membership in any groups which might come within the class of “Borough Civic Groups and Organizations” which the Court believes to be somehow unclearly defined. And since the Court accepts that the only conduct which appellants present — political canvassing — may validly be regulated by means of an identification requirement more “narrowly drawn” than that at issue here, there would seem to be no justification, even on the Court’s theory of this case, to permit appellants to raise claims which others might havé against the *633ordinance. Broadrick v. Oklahoma, 413 U. S. 601 (1973).

The Court seems initially to suggest in a footnote, ante, at 621 n. 5, that reliance upon a “vagueness” theory may somehow displace the normal prohibition against assertion of constitutional jus tertii. Any logic in such a purported distinction escapes me. Broadrick recognized that it is only the application of the doctrine of “overbreadth” which sometimes permits limited exceptions to traditional rules of standing in the First Amendment area. 413 U. S., at 610-616. Here no tenable overbreadth claim exists, and the Court correctly eschews reliance upon that doctrine. Thus the only claims properly before us are those based upon rights personal to the appellants.* I do not understand the Court to dispute this proposition: instead of attempting to rely upon whatever distinctions which invocation of “vagueness” may afford, the Court in its footnote goes on to discover allegations of several appellants regarding asserted personal “rights” to receive information of political causes which it concludes are sufficient to confer standing. I read the appellants’ complaint differently than does the Court. But more fundamentally, I fail to see how assertion of a purported “right to receive information” may permit one to raise a challenge grounded upon hypo*634thetical canvassers'1 potential uncertainty regarding coverage of an ordinance. And even if the Court were correct in determining that the scope of “political cause” is properly drawn into question, its expressions of uncertainty as to what constitutes a “recognized charitable cause” or a “Borough Civic Group [or] Organization” continue to float wholly detached from any plaintiff with standing to challenge those aspects of the ordinance’s coverage.

Assuming, on the other hand, that such issues as to the clarity of the coverage of Ordinance No. 598A are properly before the Court, I can see no constitutional infirmity in its language. In Broadrick we held that claims of vagueness directed against indistinguishable phrasing found in Oklahoma’s Merit System of Personnel Administration Act were “all but frivolous.” 413 U. S., at 607. In so doing we recognized:

“Words inevitably contain germs of uncertainty and . . . there may be disputes over the meaning of such terms .... But . . . 'there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the [definitions] may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.’ ” Id., at 608, quoting from CSC v. Letter Carriers, 413 U. S. 548, 578-579 (1973).

Broadrick’s recognition of the inherent limitations upon anticipating and defining away every problem of interpretation which might arise regarding a new statute is undeniably sound, and it is largely dispositive of any claim that the ordinance’s coverage is so unclear as to violate constitutional limitations.

*635The other shortcoming which the Court criticizes is the ordinance’s failure to “sufficiently specify what those within its reach must do in order to comply.” Ante, at 621. But, as the Court recognizes, the ordinance demands quite plainly that a person such as appellant Hynes who desires to canvass in the borough must “notify the Police Department, in writing, for identification only.” As the chief of police of the borough of Oradell put it in an affidavit submitted to the Superior Court: “All that is asked is that [a political candidate] let us know who he is.” App. G-5. I cannot see how this provision can possibly become the trap for the unwary the Court suggests in its opinion.

Appellant Hynes, for example, knows he is involved in a political campaign and that he must identify himself, in writing, to the Oradell Police Department if he desires to canvass door to door there. Should he have any doubts as to whether his identification is sufficiently detailed, he has simple recourse close at hand; he need only ask the Oradell police: “Is that enough? Do you require anything more?” Persons may thus learn exactly what is required in practice. The Court hypothesizes that a canvasser who chose to submit the requisite identification to the Oradell police by mail might learn “too late” that his submission was inadequate. Such good-faith attempts at compliance might be found to preclude liability, and the availability of similar narrowing constructions says a good deal about the wisdom of declaring this law unconstitutional before it has ever been applied. But even apart from these considerations the most that the ordinance imposes upon potential cas-vassers is the necessity of identifying themselves sufficiently in advance to ensure they have satisfied the law before embarking door to door in Oradell. Such a delay, which can hardly be more than a few days, is surely not *636an unconstitutional burden upon appellants’ rights. Surely “the guarantees of freedom of speech and due process of law embodied in the Fourteenth Amendment/’ ante, at 611, do not require that an ordinance validly requiring the identification of citizens must specify every way in which they may satisfactorily provide that information. No constitutional value is served by permitting persons who have avoided any possibility of attempting to ascertain how they may comply with a law to claim that their studied ignorance demonstrates that the law is impermissibly vague.

Finally, I do not understand the Court’s concluding observations regarding the vice of vagueness which it perceives in the ordinance’s compliance directive. The Court suggests that unspecified ambiguities may “give police the effective power to grant or deny permission to canvass for political causes.” Ante, at 622. But as the Court itself notes in Part 2 of its opinion, it has been authoritatively held as a matter of New Jersey law that this ordinance reposes “no discretion ... in any municipal official to deny the privilege of calling door to door.” Thus the authorities which the Court cites directly before the penultimate paragraph of its opinion afford no support for the result it reaches.

The Court “intimate [s] no view” as to appellants’ other contentions, ante, at 621 n. 4. Since I do not agree that there exists any unconstitutional vagueness in Ordinance No. 598A, I have felt obliged to consider these contentions to determine if today’s result can be defended upon some other ground. I do not believe that it can be. I would therefore affirm the judgment of the Supreme Court of New Jersey.

Had appellants attempted to bring their action in the Federal District Court for the District of New Jersey, Younger v. Harris, 401 U. S. 37 (1971), and its companion cases would seem to pose insuperable barriers to its successful maintenance. But as the New Jersey courts chose to entertain appellants’ constitutional challenge to the Oradell ordinance despite its having never been applied, the considerations of equity, comity, and federalism which underlie the holding in Younger are here largely absent. And since the judgment of the New Jersey Supreme Court is reviewable on our obligatory docket, 28 U. S. C. § 1257 (2), some of appellants’ claims are properly before the Court.